Cas individuel (CAS) - Discussion : 2007, Publication : 96ème session CIT (2007)

Convention (n° 29) sur le travail forcé, 1930 - Myanmar (Ratification: 1955)

A. Record of the Discussion in the Committee on the Application of Standards

A Government representative of Myanmar noted that many positive developments had taken place since the last examination of this issue, thanks to the firm commitment of the Government and the steadfast cooperation and patience of the ILO. A Supplementary Understanding establishing a complaint mechanism for victims of forced labour was concluded on 26 February 2007 and came into force immediately. Wide publicity was given to it through a press release issued by the Permanent Representative of Myanmar in Geneva, clarifications provided by the Director-General of the Department of Labour to foreign journalists in Myanmar and, finally, a web site on labour matters, including the Supplementary Understanding, launched by the Ministry of Labour on 3 April 2007.

Noting that justice delayed is justice denied, the Government representative emphasized that the cases involving forced labour which had been transmitted by the Liaison Officer to the Working Group headed by the Deputy Minister of Labour, were immediately investigated and this had resulted in their quick resolution. A majority of ILO member States had recognized that Myanmar was effectively implementing the Supplementary Understanding. The existence of the complaint mechanism was well known to the public, as evidenced by the receipt of complaints from many parts of the country. The Government was confident that this mechanism would become an effective tool in the joint effort to eradicate the practice of forced labour. In addition, the authorities had taken prompt legal action against those who had committed forced labour and these actions were published in the national newspapers, thus enhancing the credibility of the mechanism.

However, even though only nine cases involving forced labour had been received within three months of the implementation of the Supplementary Understanding, it was regrettable that there had been various attempts to increase the number of complaints, taking advantage of a clause in the Supplementary Understanding prohibiting any action being taken against complainants or their representatives due to the complaint. The Government considered that these attempts might undermine the smooth functioning of the mechanism for the bona fide victims.

Pursuant to the 298th Session of the Governing Body during which the importance of the continuous effective functioning of the complaint mechanism and the need for adequate staff resources were underlined, the Government recognized that the continued functioning of the mechanism was in the interest of the victims of forced labour and, therefore, the Deputy Ministry of Labour received the ILO Liaison Officer a.i. on 8 April 2007 and assured him that full cooperation would be extended in dealing with future complaints. There had been no disagreement between the two sides on the necessary appropriate steps to be taken to enable the Liaison Officer or his successor to discharge effectively the additional work and responsibilities. As the mechanism had been in place for only three months, the necessary adjustments could be made to the staff capacity in a reasonable time and after due consultation, as stipulated in paragraph 8 of the Supplementary Understanding. Finally, the Government of Myanmar would take into consideration the request of the Governing Body to extend the necessary cooperation and facilities.

The Government representative reiterated his Government's position regarding the participation of the members of the Free Trade Union of Burma (FTUB) which the Ministry of Home Affairs of Myanmar had declared as terrorists in its Notification No. 3/2005 and Declaration No. 1/2006 issued on 28 August 2005 and 12 April 2006, respectively. This participation would in no way contribute to the worthy efforts and intensified cooperation between Myanmar and the ILO so as to eliminate the practice of forced labour, but simply complicate the matter.

As Mr Richard Horsey had decided to end his assignment as ILO Liaison Officer a.i., Myanmar had positively responded to the appointment of Mr Stephen Marshall to this post. The Government would extend to him the facilities and courtesies that had been extended to his predecessor whose essential role in the effort to eliminate forced labour practices was recognized.

Finally, the Government representative emphasized that the conclusion of the Supplementary Understanding and the resulting establishment of a complaint mechanism were the most significant developments in the history of cooperation between Myanmar and the ILO. This achievement testified to a genuine spirit of cooperation from both sides, which was essential for the mechanism to continue to function effectively. The Government representative assured the Committee that every effort would be made to enable the mechanism to function effectively and stated that his Government looked forward to receiving the same spirit of cooperation and accommodation from the ILO and its Members.

The Employer members recalled that the discussion aimed at examining, in line with the 2000 resolution of the International Labour Conference, the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) on the basis of the report of the Committee of Experts and in particular, the implementation of the Commission of Inquiry recommendations. They recalled that regular discussion of this case went back over 25 years without any real progress having been made despite a variety of commitments and promises by the Government. Even taking into account recent developments, no real commitment had been made by the Government to meet its international obligations under Convention No. 29, both in law and in practice and to put an end to the intolerable climate of impunity. As made clear by the Committee of Experts in its latest observation, the Government had not even come close to implementing the measures recommended by the Commission of Inquiry, i.e. that legislative texts, in particular the Village Act and the Towns Act, be brought into conformity with the Convention, that the authorities cease to impose forced or compulsory labour in practice and that the sanctions provided for imposing forced or compulsory labour be strictly applied. The Committee of Experts had also noted with concern the lack of information provided by the Government on almost all the issues raised in its observation. Such information would constitute a clear and unequivocal sign of willingness to cooperate genuinely with the supervisory bodies.

The Employer members expressed regret that not much appeared to have changed regarding the need to amend legislative texts, which the Government had long been promising to do, without any compelling reasons given for not doing so. The Employer members reminded the Government that the only sustainable solution to this matter, in the absence of a clear political will to amend the Village Act and the Towns Act, was to repeal them and that immediate action should be taken in this direction.

The Government had not supplied any copies of precise and clear letters and instructions to the civilian and military authorities indicating that forced labour had been declared unlawful in Myanmar. Nor had the Government taken any action with regard to the need to give wide publicity among the population to the prohibition of forced labour. The Employer members concurred with the Committee of Experts that a starting point for the eradication of forced labour was to give very clear and concrete instructions to the authorities of the kinds of practices that constitute forced labour and to engage in a wide publicity campaign so that this information could be disseminated among the entire population. They once again stressed the importance of having recourse to a wide publicity operation by using mass media such as newspapers and broadcasting. The Employer members also expressed concern at the lack of transparency and cooperation by the Government in providing information to the Committee on the budgeting of adequate means, so that paid labour could replace forced or unpaid labour. It was absolutely necessary to demonstrate serious and genuine commitment by making the budgetary allocations.

The Employer members noted some possibly encouraging developments, i.e. the release of Aye Myint and the ending of the prosecutions in Aunglan, and the signing of the Supplementary Understanding establishing a mechanism to facilitate the free investigation of complaints of forced labour with protection extended to complainants. However, as there had been so many false promises in the past, they maintained their substantial scepticism and doubts, despite their clear desire to see in this mechanism an effective means to identify and suppress forced labour and make offenders subject to prosecution. They acknowledged that the mechanism had come into force immediately and that only three months had passed since its implementation with some positive results. They called on the Government to ensure that all necessary steps would be taken in the very near future to give additional visibility to the Supplementary Understanding and the functioning of the mechanism.

For this mechanism to work in the long term and given the increased workload imposed on the Liaison Officer, the issue of allocation of resources played a key role. It was absolutely necessary that the Office quickly assign suitable international staff to assist the Liaison Officer and that the Government extend the necessary cooperation and facilities to that end.

In conclusion, the Employer members emphasized that the Supplementary Understanding was not the end of the process as the Government seemed to see it, and called upon the Government to follow up on it by repealing the Village and the Towns Acts, ensuring that the prohibition of forced labour was given wide publicity and providing the necessary funds for the eradication of forced labour.

The Worker members pointed out that it would be worth designating a day of the International Labour Conference as "World Day for Democracy in Burma", as this issue had been a Conference agenda item for so long without the situation having undergone any significant change. This year again the Committee of Experts had repeated the recommendations made by the Commission of Inquiry in 1997, viz. the need to amend national legislation, particularly the Village and Towns Acts, the need for forced labour practices to cease, particularly by the military, and that the sanctions foreseen be applied effectively. The Government of Myanmar should in this respect especially give instructions to the civil and military authorities; publicize the ban on forced labour; provide for funds to remunerate work which was presently forced labour; and have the ban respected. The Committee of Experts had once again provided an inventory of the evolving situation or rather of the promises made and not kept. In order to fight discouragement, the Committee of Experts could consider including in its report more information on facts reported in trade union releases and particularly the elements of the discussion at the special sessions of the Conference. In this way, it might avoid the continual silence and refusals by the Government to supply information on orders which were supposed to be given to the military, purported awareness raising among the population, or information on budget allocations supposedly earmarked for the payment of work.

He noted in fact that each step forward was offset by a step backward. Therefore, although welcoming the signing of the Supplementary Understanding of February 2007 on a complaint mechanism, as well as the work carried out in often extremely difficult circumstances by the Liaison Officer a.i., one should not overestimate the impact of such a mechanism, which could not mask the fact that there had been no progress in the implementation of the recommendations and measures to be taken. The reply given by the Ambassador of Myanmar in no way constituted a satisfactory reply to the resolution of 2000 which called for amendments to the law, the giving of instructions to the civil and military authorities, the organization of a publicity campaign on the prohibition of forced labour, budgetary arrangements to remunerate current forced labour, and for the application of sanctions. Consequently, the mechanism was only an instrument, not a measure for the elimination of forced labour, as evidenced by the 23 complaints received since the signing of the Supplementary Understanding. The situation therefore remained very serious as would be demonstrated by many other interventions from the Worker members.

Another spokesperson for the Worker members recalled that this case had been subject to reports by the Committee of Experts for over 25 years and had been of critical concern to the labour movement in his country, the United States, where the AFL-CIO supported legislation passed in July 2003 prohibiting United States trade relations with the Burmese military junta regime. Based on the report of the Committee of Experts and the response of the Government, including its reference again to an independent and democratic trade union organization, the FTUB, being a terrorist organization, these economic measures were more than justified. However, concerns were raised by recent information indicating that United States' multinational enterprises were doing business in Burma under the guise of local corporate operations, in possible contravention of the 2003 legislation.

The Worker members expressed regret at the fact that nine years after the recommendations of the Commission of Inquiry, the case continued to be one of profound and fundamental non-compliance as shown by the Committee of Experts' report and the Government's response. Although the Governing Body had decided in March 2007 to defer the question of an advisory opinion by the International Court of Justice (ICJ) until the necessary time, it was also stated in paragraph 6 of document GB.298/5/2 that an issue that could be referred to the ICJ was whether the required cooperation and actual progress in the implementation of the recommendations of the Commission of Inquiry met the relevant threshold. This threshold had, in their opinion, hardly been met, let alone approached.

With regard to the Supplementary Understanding signed between the ILO and the Government in February 2007, the Worker members recognized and welcomed the premise in the agreement to prohibit judicial and retaliatory action against complainants and enhance the capacity of the Liaison Officer. However, it was totally misplaced to conclude that this measure by itself meant that the Commission of Inquiry's recommendations had been met. The Supplementary Understanding's limited content had been adopted on a 12-month trial basis only. The most fundamental limitation was that, even under the best of circumstances, it was essentially based on complainants coming forward thus exposing themselves to the risks of the regime's justice system. The instrument, by itself, only scratched the surface of a non-compliance problem that was structural, chronic and omnipresent. As indicated by the democratic and independent Federation of Trade Unions Kawthoolei (FTUK) to the ITUC Burma Conference which took place in Kathmandu in April 2007, the new ILO reporting mechanism for victims of forced labour was unlikely to work because villagers could not get to Rangoon to report abuses even if they were willing to risk the inevitable punishment by the State Peace and Development Council (SPDC) if they did speak out. Karen State villagers could not travel easily to Rangoon because many of them faced movement restrictions by the SPDC, were too poor to afford travelling costs and were struggling to farm enough food to survive. With regard to the State of North Arakan, identified by the ILO as one of the regions with the greatest prevalence of forced labour, the Rohingya ethnic group could not exercise freedom to travel and Rangoon was totally off limits, thus preventing complaints coming to the ILO office for all intents and purposes. Moreover, there were thousands upon thousands of Burmese victims of forced labour who had sought refuge and asylum in Bangladesh, Malaysia or Thailand with no evident or effective means and safeguards to bring forward complaints pursuant to the Supplementary Understanding. Finally, reports by the FTUK, the FTUB and the Arakan Project, relying on accurate interviews with courageous eyewitnesses, indicated widespread and unchecked practices of forced labour in Karen State, Northern Arakan State and other regions of the country as recently as late 2006 until May 2007. Such work included cultivation of biofuels, rubber trees and summer rice paddies, construction of military facilities, roads and bridges, sentry duty and portering, just to name some examples.

In conclusion, the Worker members emphasized that without serious commitment to broad investigation and enforcement powers, including, but not limited to, an ILO Liaison Office with an expanded capacity to conduct nationwide inspection that did not depend entirely on the courage, volition and personal wherewithal of individual complainants, Burma would surely maintain its unconscionable distance from what the Governing Body had called the relevant threshold.

The Government member of Germany, speaking on behalf of the European Union, the candidate countries: Turkey, Croatia and The former Yugoslav Republic of Macedonia; the countries of the Stabilization and Association process and potential candidates: Albania, Bosnia and Herzegovina, Montenegro, Serbia; the European Free Trade Association (EFTA) countries: Iceland and Norway; and members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Switzerland, which aligned themselves with the declaration, welcomed the signature in February 2007 of the Supplementary Understanding on the establishment of a credible and effective complaint mechanism to enable victims of forced labour to seek redress, as well as the fact that in a period of three months a total of 23 complaints had already been received by the Liaison Officer a.i. The European Union expressed its strong support for the Liaison Officer in his request for additional staff in order to deal adequately with the increasing number of complaints as stated in paragraph 8 of the Supplementary Understanding. Although it was too early to make a final assessment, positive signs were acknowledged with regard to the implementation of the complaint mechanism. However, the Burma/Myanmar authorities were strongly encouraged to show good faith and sincerity in fully implementing the Supplementary Understanding in the future so as to make it an actual step towards the ultimate aim of ending forced labour in Burma/Myanmar. This was crucial to accomplishing substantial and permanent improvement in the human rights situation in Burma/Myanmar. It was also hoped that the ASEAN countries would support the Burma/Myanmar authorities' efforts to implement fully the Understanding and thus contribute to the ending of forced labour. The European Union fully supported the conclusions of the Governing Body adopted in March 2007, approving the option of seeking an advisory opinion by the International Court of Justice but deferring this legal option for the time being. It would continue to monitor closely the human rights situation in Burma/Myanmar, in particular the actual progress in the implementation of the Supplementary Understanding.

The Government member of the Philippines acknowledged the importance of the ILO presence in Myanmar and thanked the ILO Liaison Officer a.i., Mr Horsey, for his efforts to assist the authorities in complying with Convention No. 29. Stating that his Government was firmly opposed to the practice of forced labour, he encouraged the Government of Myanmar to exert all efforts to comply with the Convention and eradicate forced labour practices throughout the country.

He welcomed the conclusion, in February of this year, of the Supplementary Understanding between the ILO and the Government of Myanmar, which established the mechanism for handling complaints of forced labour. He also noted the latest developments in Myanmar since March 2007, particularly the progress in the handling of complaints as reported by the ILO Liaison Officer. Such positive developments underscored the importance of dialogue and cooperation between all parties concerned; in this regard, the Governing Body's decision to defer the seeking of an advisory opinion by the International Court Justice was a welcome one. He concluded by expressing full support for Mr Stephen Marshall's appointment to the ILO Liaison Office in Yangon.

The Government member of the United States thanked the Office for its summary of developments since June 2006, and its update of developments since the Governing Body last considered this issue in March 2007.

She noted with interest that the complaint mechanism established under the Supplementary Understanding had been put into practice, and expressed encouragement with the fact that, according to the latest reports, the Liaison Officer a.i. had received 23 complaints. She observed nonetheless that, as relatively few cases had reached a conclusion that the Liaison Officer was able to confirm, it was clearly premature to judge whether the mechanism was producing real and meaningful results.

The process of eliminating forced labour required continuing effort. It required continued, unrestrained access by complainants to the Liaison Officer, proof that complainants were not being subjected to harassment or punishment for their complaints, proof that those who impose forced labour were punished, and proof that the punishments were commensurate with the seriousness of the acts committed. Strengthening the staff of the Liaison Office to deal with the increased workload was also necessary. In this regard, she noted with concern that at the time the Office's report was finalized, the ILO's request for suitable international staff to assist the Liaison Officer had not been acted upon. Hopefully the practices of delay and deception seen too often in the past were not being repeated; the authorities should act expeditiously to facilitate the ILO Liaison Office's staff expansion, in keeping with the commitments made in the Supplementary Understanding.

The developments reviewed within the scope of the Supplementary Understanding were still small and preliminary steps, and the complete elimination of forced labour in Myanmar remained a distant goal. She stated that the steps the authorities needed to take had been specified by the Commission of Inquiry nearly a decade ago and must be implemented; additionally, it was necessary to recognize that the goal of ending forced labour was inextricably bound to progress in allowing the country's people their democratic rights - including freedom for Aung San Suu Kyi and other civil society leaders.

She asserted that the members of the ILO also possessed certain responsibilities, and that the United States, for its part, had taken action by extending for yet another year stiff economic and travel sanctions against the regime. She concluded by thanking the Liaison Officer a.i., Mr Richard Horsey, for his dedicated work to eliminate forced labour over the last five years and welcomed his successor to the Yangon Liaison Office, Mr Stephen Marshall.

The Government member of Japan expressed support for the Supplementary Understanding, which reflected the tireless efforts of both the ILO and the Government of Myanmar to arrive at an agreement. He commended these efforts and took note of the fact that the mechanism established by the Supplementary Understanding was working well. Recalling the predicaments and frustrations of previous years, he stated that the Supplementary Understanding had given rise to new expectations and hopes for better cooperation between the ILO and the Government.

He expressed gratitude for the ILO Liaison Officer a.i. Mr Richard Horsey's service over the past five years and welcomed Mr Stephen Marshall's appointment to the Liaison Office in Yangon. Taking due note of the increased workload the Liaison Office would be expected to assume, he urged the Government to accept the ILO's request to strengthen that office's staff resources.

The conclusion of the Supplementary Understanding was only a beginning, he remarked. The Understanding's true significance hinged upon its successful implementation; the Government was strongly urged to ensure that this would be realized. He stated that the next year would prove critical as a test period and emphasized the importance of keeping a vigilant eye on the manner in which the Government implemented the commitments it had assumed, as well as the extent to which victims of forced labour could, through the services of the ILO Liaison Office, channel complaints and seek remedies free from the threat of retaliatory action.

He noted the positive comments made by the Government, in particular the favourable indications it had expressed with regard to the strengthening of staff resources in the ILO Liaison Office. He concluded by stressing the importance of the spirit of cooperation, without which the elimination of forced labour could not effectively be realized, and offered the assistance of his Government in this regard.

The Government member of Australia thanked the Office for its efforts in engaging with the Government of Myanmar and expressed his appreciation for Mr Horsey's service over the years. He also welcomed the appointment of Mr Marshall as the new Liaison Officer and trusted that all cooperation would be extended to him by Myanmar.

He welcomed the Liaison Officer's most recent assessment, which demonstrated that the complaint mechanism was functioning. It was encouraging to note that several complaints from across the country had been received, and that action had been taken by the authorities in some of these cases. At the same time, he noted with concern that the Liaison Officer had assessed that nine of the cases reported involved situations of forced labour, underscoring once again the persistence of the forced labour problem in Myanmar.

Stressing the importance of the Government's full cooperation with and assistance to the ILO, he welcomed the assurances made by the Deputy Minister of Labour on 8 April 2007 that Myanmar would continue to extend full cooperation in dealing with future complaints. Support was also expressed for the ILO's request for additional staff to its Liaison Office, given the increasing number of complaints received.

He emphasized that the success of the mechanism would largely depend on the confidence that ordinary people - those subject to forced labour - had in it; this confidence would be the result of the actions, including successful prosecutions, taken against those officials responsible for forced labour, regardless of their rank. He called on the Government to fulfil its commitment to give adequate publicity to the Supplementary Understanding in the appropriate languages. He expressed encouragement over the functioning of the mechanism but stressed that this was but part of a broader obligation on Myanmar's part to eradicate the use of forced labour throughout the country, noting that the ultimate goal would only be achievable if the Government fully implemented the recommendations of the Commission of Inquiry. He strongly urged it to do so.

The Government member of India stated that since the Governing Body's last session in March 2007, Myanmar had taken further steps to cooperate with the ILO Liaison Office in Yangon - in accordance with the recommendations of the Report of the Committee on the Application of Standards - by establishing a mechanism to eradicate the practice of forced labour. Nine complaints of forced labour were currently being investigated by the authorities.

Noting further that the Government had agreed to the replacement of the present ILO Liaison Officer by another ILO official, he considered that the Government should be commended for the cooperation it had extended in addressing the practice of forced labour. The ILO was also to be commended for its efforts to assist Myanmar. Recalling that India had been, and continues to remain strongly opposed to forced labour, which was expressly prohibited under its Constitution, he reiterated his Government's support for the developments in eradicating this problem through the joint endeavours of the ILO and the Government of Myanmar.

The Government member of New Zealand thanked the Office for its update on Myanmar's observance of Convention No. 29 and expressed her appreciation for the work undertaken by Mr Horsey. She expressed encouragement over the progress reported, in particular the fact that all concerned parties had expressed initial satisfaction with the start-up phase of the new complaint mechanism - the widespread geographical use of which appeared to be a good indication of national coverage. She congratulated the concerned parties on these results and looked forward to deeper cooperation in the months and years to come, to eliminate forced labour in Myanmar. She encouraged the Government to accept the ILO's request to strengthen staff resources in its Liaison Office, and extended her congratulations to Mr Marshall on his appointment to the Liaison Officer position.

The Government member of Canada thanked the Office for its efforts in addressing the problems of forced labour in Myanmar, commending in particular the work of Mr Horsey. He observed that this week witnessed the 17th anniversary of Myanmar's last democratic elections, which were won in a landslide by Nobel laureate Aung San Suu Kyi's National League for Democracy. Adding that Aung San Suu Kyi remained under house arrest, he maintained that the Government consistently violated the most fundamental human rights of its people, as demonstrated most recently in the May arrest of activists - including noted labour activist Su Su Nway - calling for Suu Kyi's release.

He clarified that speaking of these rights violations was necessary to provide important context to the forced labour issue, towards the elimination of which the recent Supplementary Understanding constituted an important first step. Trusting that the Government would, under the terms of the Understanding, allow the Liaison Office to increase its staff, he expressed encouragement that complaints were being received and investigated, and that successful prosecutions and punishments had followed. As confidence in the new complaint mechanism developed through practice and publicity, the agreement should be extended indefinitely.

These developments notwithstanding, he stressed that the context of continuing violations remarked upon earlier did little to inspire confidence; he urged the ILO to maintain its vigorous efforts while calling upon the Government of Myanmar to move forward and implement the recommendations of the Commission of Inquiry.

The Government member of the Russian Federation affirmed that forced labour was unacceptable, wherever it occurred, and that it should be eliminated in Myanmar promptly and fully. Doing so, he stated, would require the Government's active involvement. In this regard, his Government welcomed the conclusion of the Supplementary Understanding between Myanmar and the ILO, which gave the Liaison Office additional powers to consider complaints of forced labour.

Noting that by all indications the mechanism established was working, he expressed gratitude for the important work undertaken by Mr Horsey. He also commended the fact that in the time since the previous International Labour Conference, Myanmar had ceased prosecutions and released several persons accused of propagating false information on forced labour. As regards the question of seeking an opinion from the International Court of Justice (ICJ), he expressed serious doubts as to the desirability of such a measure. Though an interpretation from the ICJ might be appropriate where there was a divergence of opinion regarding the substance of Convention No. 29, no such divergence existed in the present case, as the Government had admitted to problems in implementing the requirements of the Convention. He therefore considered that his Government could not endorse the seeking of an opinion of a binding nature. In any event, the conclusion of the Supplementary Understanding had rendered the question of an advisory opinion from the ICJ irrelevant.

The Worker member of Singapore noted that the signing of the Supplementary Understanding came about after more serious options had been considered, such as referring the matter to the International Court of Justice. The Understanding was meant to address one very important aspect of the 1997 Commission of Inquiry's recommendations, and the fact that it would not be possible to eradicate forced labour without a complaint mechanism.

The speaker made two observations. First, the number of 23 complaints appeared to be very small compared to the number of forced labour cases reported. Those wishing to make complaints were faced with serious difficulties as they were not always aware that they could do so, and could not easily travel to lodge complaints even if they were aware of such possibility. The ILO Liaison Office was also seriously understaffed and the Government had not responded positively to requests for further resources. Secondly, the small number of 23 complaints gave a very misleading impression of the forced labour situation in the country. The reality was that forced labour continued to be perpetrated with impunity. The speaker referred to cases quoted in the Committee of Experts' report and communications received from the International Trade Union Confederation (ITUC) in 2005 and 2006. The overall picture was grim: forced labour was being used in nearly every state and division of the country, in "development projects", construction or maintenance of infrastructure and in army camps. There was arbitrary use of child labour, including conscription of child soldiers, sexual slavery, human minesweeping and confiscation of land, crops, livestock and money. Since the signing of the Understanding, the Federation of Trade Unions of Burma had recorded 3,405 cases of forced labour in several states and divisions. In Arakan State there was systematic discrimination against ethnic minority communities. Villagers were even forced to provide materials for construction works. Other cases reported recruitment for portering, sentry duty in military camps and use as human shields. There was widespread use of forced labour in remote areas near the border with Bangladesh. There were also new emerging patterns of forced labour taxation related to the implementation of government development projects. Grazing land had also been seized. Up to May 2007, there were reports in northern Karen State of forced labour as part of efforts by the military to strengthen its grip on the area.

In all, she said, it was clear that forced labour was not abating in Myanmar but becoming systematic and widespread. She called on the ILO not to fail in its efforts. Success in the eradication of forced labour in Myanmar should not be measured by the number of complaints received by the Liaison Office.

An observer representing the International Trade Union Confederation (ITUC) spoke of the case of U Saw Tun Nwe, who had been taken away for questioning by the military in February 1997 and reported dead by the BBC Burma service two days later as a result of injuries received while in detention. These injuries were the result of severe beatings and forced labour. The victim, who was 73 years old, was part of a group of 21 people selected for forced labour duties. All were arrested in their homes, interrogated and put into forced labour. Another one of the 23 also died of injuries received while in detention. The first victim, U Saw Tun Nwe, was also the father of the speaker, who felt himself fortunate not to have suffered the same fate. Ten years later, forced labour violations were still taking place in the country. The FTUB, the FTUC, the RGWU and Mon human rights organizations had compiled a joint report on forced labour in 2007, and he appealed to the ILO to forward the appropriate questions to the International Court of Justice so that action could be taken.

The Worker member of France reported on the action taken by the international movement of trade unions to implement the resolution adopted in 2000 by the Conference in the framework of article 33 of the ILO Constitution. The International Trade Union Conference, which was held in Nepal in April 2007, had stipulated specific action intended to implement the ILO decisions concerning Myanmar. Thus, in its final statement, that Conference had expressed its concern in view of the increase in investments in the oil and gas industries and mining activities, the illegal export of timber and the fact that a significant part of the Burmese economy was dominated by enterprises controlled by or associated with the military.

The International Trade Union Conference had decided to focus its campaigns on multinationals operating in the country, in particular large infrastructure projects, such as the Salween dam, financed by the Asian Development Bank, that was also part of the implementation of the resolution of 2000; such as the large-scale investments in the exploitation of oil, minerals and forestry, or gas, particularly the project run by a large French multinational. These investors had to recognize that, in the context of their economic activities in the country, they were benefiting from the infrastructure, particularly the roads, security and services provided by the State possibly through the use of forced labour. The enterprises had to cease their complicity in using these different infrastructures. Furthermore, the increase in exports coming from Burma as a result of the operation of these multinationals directly contributed to the wealth of the regime and the army, the latter being the main perpetrator of forced labour. In many countries, workers and citizens had joined forces and called on their governments to ensure that multinationals implemented the guiding principles established by the OECD on multinationals. At the request of the trade unions, the national focal points in France and the Netherlands issued recommendations aimed at multinational enterprises in their countries, resulting, with respect to the Netherlands, in a change towards a policy discouraging economic links with Burma. In this respect, the limited scope of the common position adopted by the European Union was regrettable. This might be explained by the fact that European multinationals continued to invest and operate in Burma.

The speaker emphasized that the actions undertaken by workers with a view to implementing the decisions taken by the ILO within the framework of article 33 of its Constitution would remain limited as long as the actions of diplomats and the activities of multinationals did not comply with the relevant obligations, namely to reconsider the economic relations they maintain with the Burmese regime and report on them to the ILO.

The Worker member of the Republic of Korea raised the issue of foreign direct investment in Myanmar and the enhanced use of forced labour that it would entail. He mentioned names of certain foreign companies involved.

The Chairperson intervened and reminded the speaker that companies should not be explicitly named.

The Worker members pointed out that the names of the multinationals involved were relevant to the discussion.

The Employer members recalled that the Committee was only discussing Myanmar's obligations under Convention No. 29. Naming companies indiscriminately suggested that they were collaborating in forced labour practices.

The Worker members reminded the Committee that the 2000 International Labour Conference resolution required action by constituents regarding effective compliance with the Commission of Inquiry's recommendations and again submitted that the Worker member of the Republic of Korea's intervention was relevant.

The Worker member of the Republic of Korea, continuing his intervention, claimed that during gas exploration work, numerous reports had been submitted regarding the use of forced labour. A planned 2,380 km pipeline from the Arakan offshore area to Kunming in China would increase human rights abuses including forced labour along the pipeline, as had a previous project. This project, the Yadana pipeline, built between Myanmar and Thailand, had resulted in unprecedented amounts of forced labour and relocation. He called for companies and states involved to carry out an impact assessment on human rights before proceeding with construction of the pipeline. Governments had a responsibility under article 33 of the ILO Constitution to apply the measures recommended in the 2000 resolution.

The Worker member of Japan reported that trade and investment in Myanmar had recorded sharp increases. According to the OECD, in 2005, Myanmar received aid worth US$145 million, up by 17 per cent from the previous year. Until recently, the Government of Japan had been one of the leading donors, but had now in principle suspended aid. The United States had imposed a total ban in 2003.

However, governments had a responsibility to monitor whether aid, even of a humanitarian nature, actually brought benefits to those in need. There were reports that the Programme of Economic Cooperation in the Mekong Delta, supported by the Asian Development Bank, had caused severe effects on Myanmar, especially forced relocations and loss of farm land. New donors were also emerging in the countries that shared borders with Myanmar which had interests in energy resources, border security and transport facilities. The recent trends in terms of official development demonstrated that adherence to the resolution adopted by the 88th International Labour Conference in 2000 calling upon constituents to review their relations with Myanmar, was not being adhered to in the way intended. She urged the governments concerned to respect and apply this document, at the same time, she called on trade unions to remain vigilant regarding the behaviour of governments in their relations with Burma, especially as concerned official development aid.

The Government member of Belarus stated that his Government considered constructive dialogue and cooperation as the best way forward in the elimination of forced labour. The Government of Myanmar and the ILO were making progress in their efforts and there was reason to suppose that the Supplementary Understanding would become effective and provide objective information on the situation of forced labour. He noted that of the 23 complaints made only nine were justified, and welcomed the Myanmar Government's statement regarding effective cooperation. He also welcomed the appointment of the new Liaison Officer and hoped that forced labour would be removed from the agenda during his tenure.

The Government member of China thanked the Office for its efforts with regard to the forced labour situation in Myanmar and welcomed the appointment of the new Liaison Officer. Since the signing of the Supplementary Understanding, Myanmar had made efforts and taken measures to implement the agreement. The complaint mechanism was functioning and the Chinese Government hoped that the process would have the support of the Committee. China saw dialogue and cooperation as an effective and workable approach to enable member States to eradicate forced labour, and the Government of Myanmar had reiterated its commitment to continued cooperation with the ILO to eliminate forced labour. He hoped that the Government would closely cooperate with the ILO to ensure the effective functioning of the complaint mechanism.

The Government member of Cuba, after having stated that he rejected all forms and expressions of forced labour in any part of the world and supported any measure that would be adopted to eliminate it, said that his delegation firmly believed that dialogue and cooperation constituted the appropriate means to solve this problem, rather than the application of coercive measures which, instead of helping to solve the problem, could provoke a new cycle of confrontation to the detriment of the well-being of the people they were meant to protect. He said that his Government appreciated the efforts made by both the Government of Myanmar and the ILO, which had succeeded in creating a mechanism designed to receive and examine the complaints submitted with regard to issues related to forced labour, a mechanism which was currently functioning.

The Government member of the Republic of Korea supported the Supplementary Understanding between the Government of Myanmar and the ILO on a mechanism to deal with complaints of forced labour. He reported that his Government had investigated the allegations made by the Worker member of the Republic of Korea against a Korean enterprise and had concluded that the company had never committed human rights violations or been responsible for wage arrears with respect to Myanmar workers. The company had actually opened an information channel with other foreign companies to prevent human rights infringements.

The Worker member of Germany regretted that workers in Burma did not have the right to establish organizations of their own choosing and that, due to the tolerated practice of forced labour, which was to some extent even promoted by the State, there was no possibility of enforcing trade union rights. She could not see that the Government was doing even the least to elucidate the accusation of alleged high treason against the Secretary of the FTUB, Maung Maung. It appeared that the FTUB Secretary-General was prosecuted because of his trade union activities. She further stated that his trade union activities were considered terrorist activities, as indicated in a recently published article, stating that the Burmese culture was influenced by the international community, which was influenced by the "terrorist organization" FTUB. It stated further that the FTUB reported to the ITUC, which in turn reported to the ILO. She stressed that this was not only libellous with respect to the FTUB and the ITUC, but also with respect to the ILO and its constituents. The regime had also not released Myo Aung Thant, sentenced to 20 years' imprisonment after a secret trial for alleged high treason. On 1 May of this year, six colleagues were arrested after participating in a Labour Day event. Two more trade union coordinators were arrested by military police on their way back from the Thai border, where they had drawn attention to the events of 1 May.

She urged the Burmese Government to release Thurein Aung, Kyaw Kyaw, Wai Lin a.k.a. Wai Aung, Nyi Nyi Zaw, Kyaw Min a.k.a. Wann and Myo Min, whom she named on behalf of all detained colleagues. She issued the same request for Nobel Peace Prize laureate and winner of the free elections in 1990, Aung San Suu Kyi, still kept under house arrest. She asked how much patience people in Burma must exercise until universal human rights would apply to them, how much patience the ILO must exercise until the Burmese military regime implemented Convention No. 87 and forced labour was a thing of the past?

The Government representative indicated that he had listened very carefully to the statements made by the members of the Committee and had noticed that the establishment of the complaint mechanism under the Supplementary Understanding had given rise to mixed reactions. He regretted the scepticism expressed by certain members with regard to the effectiveness of the mechanism in eradicating the practice of forced labour and emphasized his Government's commitment to ensuring that this mechanism would become an effective tool not only for receiving complaints but also punishing those who committed forced labour. If action was taken promptly by the Government to have the complaints settled, the mechanism could act as a strong deterrent. He therefore appealed to the members of the Committee to continue the cooperation with the Government of Myanmar and allow for assistance to be given to it in its endeavours to eradicate the practice of forced labour.

The Worker members expressed frustration at the lack of progress on this case and emphasized the gravity of the issue which gave rise to this special sitting which takes place every year with the objective of seeking, indeed demanding, progress in the implementation of the 2000 resolution and Convention No. 29 in law and in practice. The discussion had shown that forced labour, which was a fundamental violation of human rights, remained an extensive, systematic and nationwide problem. The civilian and military authorities had a duty not to practise forced labour and specific action was required to address this practice especially where it was carried out by the army in border States.

The current complaint mechanism pursuant to the Supplementary Understanding was an important instrument but the Liaison Office needed to be strengthened substantially. Moreover, the complaint mechanism would have minimum effect unless and until there were demonstrable guarantees facilitating full access to it, with protection for the victims who submitted complaints, and until there were substantive changes in the law and the justice process to ensure that those responsible for exacting forced labour were subject to sanction, so as to end the widespread situation of impunity. The Committee of Experts had noted in its 2007 report the concrete and practical steps needed to eradicate forced labour, including the permanent revocation of the policy of prosecuting persons who lodged complaints; the total repeal of the Village and the Towns Acts; the provision of concrete and verifiable information about specific and concrete instructions to civilian and military personnel to eliminate forced labour practices; mass communications to the entire population on the imperative to eliminate forced labour as well as information on the use of the complaints mechanism; and finally, the provision of verifiable evidence about the measures taken to provide an adequate budget allocation for the replacement of forced or unpaid labour.

In conclusion, the Worker members reiterated their view that the possibility of submitting a request to the International Court of Justice for an advisory opinion as to whether the cooperation by the Government of Myanmar and the actual progress made in the implementation of the recommendations of the Commission of Inquiry met the relevant threshold, should remain an option.

The Employer members noted that the Government clearly needed to implement the recommendations of the Commission of Inquiry immediately, and that seven years after the resolution of the International Labour Conference, the Supplementary Understanding was at best a small step which in and of itself would certainly not eradicate forced labour in the country. It was therefore essential that the Village and the Towns Acts be repealed, wide publicity be given to the prohibition of forced labour, and the necessary environment be created so that forced labour be converted to paid labour. No indication was provided during the discussion that the Government intended or was considering such actions. However, until all this was done, the Government would not even come close to meeting its international obligations.

The Worker members pointed out that their consent for the conclusions on this case was based on their understanding that the need for concrete and verifiable measures was absolutely essential. With specific reference to the conclusions of the Governing Body of March 2007, an advisory opinion of the International Court of Justice might be considered.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2006

Latest developments since March 2007

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (no.29)

1. Document GB.297/8/1

2. Document GB.297/8/2

3. Document GB.298/5/1

4. Document GB.298/5/1(Add.)

5. Document GB.298/5/1(Add.2)

6. Document GB.298/5/2

7. Conclusions on item GB.298/5

The Committee examined the observations of the Committee of Experts and the report from the ILO Liaison Officer a.i. in Yangon which included the latest developments in the implementation of the complaint mechanism on forced labour that was established on 26 February 2007. The Committee noted the decisions of the Governing Body of March 2007. It also listened to the statement of the Government representative. The Committee expressed its profound concern at the forced labour situation in Myanmar, as reflected in the observation of the Committee of Experts. It concluded that none of the recommendations of the Commission of Inquiry had yet been implemented, and the imposition of forced labour continued to be widespread, particularly by the army to which specific instructions should be issued. The situation in Kayin (Karen) State and northern Rakhine (Arakan) State was particularly serious. The Committee strongly urged the Government to take all the necessary measures to give effect to the recommendations of the Commission of Inquiry. The Committee took due note of the fact that the complaint mechanism on forced labour continued to function, and that the authorities were investigating the cases referred to them by the Liaison Officer and taking action against those officials found to have illegally imposed forced labour. It was observed, however, that in a number of cases the action taken had been limited to administrative measures rather than the required criminal penalties. It was also observed that the mechanism had to be assessed against the ultimate goal of eliminating forced labour, and it remained to be seen what the impact would be, particularly in the border areas. The Committee underlined the need for the Liaison Officer to have sufficient staff resources available to him as provided for in the Supplementary Understanding and requested by the Governing Body in March 2007. It noted with concern that the Government had not yet agreed to the appointment of an international staff member to assist the Liaison Officer, even though the workload continued to increase, and urged that the necessary cooperation and facilities be given without delay. The Committee requested the Myanmar authorities to give full cooperation to the ILO and extend to the new Liaison Officer all the facilities necessary under the agreement and appropriate under usual diplomatic practice. The Government of Myanmar was requested to provide full information to the Committee of Experts in time for its session later this year, including concrete and verifiable evidence of action taken towards the implementation of the Commission of Inquiry's recommendations. Finally, the Committee welcomed the appointment of Mr Stephen Marshall as the new ILO Liaison Officer in Yangon and expressed its deepest appreciation for the work carried out by the outgoing ILO Liaison Officer a.i., Mr Richard Horsey.

The Worker members pointed out that their consent for the conclusions on this case was based on their understanding that the need for concrete and verifiable measures was absolutely essential. With specific reference to the conclusions of the Governing Body of March 2007, an advisory opinion of the International Court of Justice might be considered.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2006

Latest developments since March 2007

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (no.29)

1. Document GB.297/8/1

2. Document GB.297/8/2

3. Document GB.298/5/1

4. Document GB.298/5/1(Add.)

5. Document GB.298/5/1(Add.2)

6. Document GB.298/5/2

7. Conclusions on item GB.298/5